The regulation of economic life, whether through law or politics, has been a fixture of daily life from time immemorial. Formal regulation occurs through a variety of formal devices, the efficacy of which is argued about by legal scholars, economists, policymakers, legislators, and governments. Even expressions like “to regulate” or “to deregulate” carry a range of political and even moral connotations, depending on who is using the phrase and how they are deploying it.

From Hugh Henry Brackenridge's Modern Chivalry (1792–1815) to William Gaddis's A Frolic of His Own (1994), legal figures and themes are nearly ubiquitous in American fiction. Similarities between the two discourses suggest a reason why. Law and fiction both use narrative form to establish or challenge values, norms, and ideas of order. As Robert Cover, a legal scholar, observes, “No set of legal institutions exists apart from the narratives that locate it and give it meaning.” Allan Hutchinson expands on Cover's theme: “We are never not in a story. History and human action only take on meaning and intelligibility within their narrative context and dramatic settings.” As storytelling enterprises, law and fiction offer ways to “mediate our engagement in the world with others,” providing “the possibilities and parameters of our self-definition and understanding.” Given the overlap between law and fiction as normative and narrative projects, the presence of law in literary narratives and of literary narratives in legal reasoning seems unsurprising, even inevitable. Because of the heterogeneity and changing composition of the American populace, legal and literary narratives provide particularly important means of formulating fundamental values, such as equality and justice.

Novelists are also plainly drawn to the peculiarities of the law: its forms, specialized rules and vocabulary, as well as its need to be predictable and to furnish a degree of certainty in its results. Law novels often feature descriptions of the formalities of courtroom procedure and specialized concepts and phrases (e.g., the title of Gaddis's A Frolic of His Own points to doctrine limiting the liability of a master for the wrongful behavior of a servant acting outside the scope of his agency).

In setting the standards for what is or is not appropriate behavior, parents and children frequently confront an important distinction in the quality and nature of rulemaking. Certain acts are prohibited or required simply because the rulemaker decides it must be so and has the power to insist on obedience. When the child asks, “Why must I make my bed before breakfast?” the parent replies, “Because I say so.” Other rules, however, seem weightier or more profound. Prohibitions on bullying other children or teasing one’s pet often come with a conversation about values, such as kindness, reverence for life, or the golden rule.

Applying this commonplace distinction to the workings of a legal system often leads to confusion. In his famous essay, “The Path of the Law,” Oliver Wendell Holmes, Jr. cautions us not to mistake law for morality. To understand the law, Holmes argues, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” Like the child responding to a command that carries no more profound justification than the will of the parental lawmaker, the “bad man” studies the law in order to predict what kinds of actions will get him into trouble (regardless of whether he finds such acts morally reprehensible or not). In Holmes’s view, the language of law can sound like the language of morality, but one only has to recollect that “many laws … enforced in the past” and “enforced now … are condemned by the most enlightened opinion of the time” to see the necessity for distinguishing between legal and moral discourses.

What is the sentimental novel?

People discussing the sentimental novel often begin by observing the genre's remarkable commercial success. Sentimental novels, such as Uncle Tom's Cabin (1852) by Harriet Beecher Stowe, The Wide, Wide World (1850) by Susan Warner, and The Lamplighter (1854) by Maria Cummins were best-sellers when the mass market for novels was a relatively new phenomenon (Davidson 16–37, Gilmore 46–54). Nathaniel Hawthorne famously complained, “What is the mystery of these innumerable editions of the Lamplighter, and other books neither better nor worse? – worse they could not be, and better they need not be, when they sell by the 100,000” (Fern xxxiv). More recently, critics have sharply differed on the significance of the genre's popularity – some seeing it as a sign of the sentimental novel's expressive power and others as evidence of the culture's vapidity (e.g., Tompkins 124, Douglas 114). These discussions often overlook a revealing point of connection between the sensational romance and the sentimental novel. Before the extraordinary sales of Uncle Tom's Cabin (estimated at 5 million before the Civil War), the biggest seller in American fiction had been George Lippard's The Quaker City (1845) (Gilmore 54). A marketing expert trying to understand the comparable popularity of such ostensibly different productions would be quick to note that they share an emphasis on powerful emotion. Both genres seek to produce in the reader an overwhelming emotional reaction, and both genres are willing to shock the reader in order to generate the desired intensity of feeling.

The early American novel

Defining the novel is easy: it is a fictional prose narrative of substantial length. While one may question the distinction between fact and fiction or the requirement that the novel be written in prose, this simple definition seems generally apt, describing the books we commonly label as novels. It does not, however, say anything about why we read novels. A few key features accounting for the genre's appeal seem fairly plain. First, the novel lives and dies by its ability to create the fictional illusion of a complete world. This world may be highly realistic in the sense that it conforms closely to a recognizable historical moment, or it may be utterly fantastic. In either case, we must be able to see ourselves in it, imagine breathing its atmosphere and encountering its creatures and landscapes. Second, the reader must be driven to know what happens next, or, in all likelihood, he or she will put the book down. The other pleasures of the prose will probably not be sufficient to hold the reader in the absence of a compelling storyline and/or characters. Third, even if it is only to suggest the impossibility of finding meaning in art and experience, the narrative will have some significance beyond a mere recitation of characters and events. Stories of all types tempt us to connect them with explanations of larger meanings, values, and phenomena.

What is American literary realism?

At the outset, we should distinguish American literary realism from the notion of verisimilitude – the fictive illusion that the reader is vicariously entering a world elsewhere. This effect, which is common to fantasies, sentimental novels, Gothic tales, and historical romances as well as realist texts, requires that the characters, actions, and settings be imagined with a sufficient degree of plausibility so that the reader feels as though he or she were watching events unfold in the world and time of the tale. Reflecting on the different sorts of writing he read during his youth, Benjamin Franklin singles out the fictive illusion as the defining aspect of fictional narrative: “Honest John [Bunyan] was the first that I know of who mix'd narration and dialogue; a method of writing very engaging to the reader, who in the most interesting parts finds himself, as it were, brought into the company and present at the conversation” (17). That feeling of vicarious presence at the events being described is to fiction what malt is to beer and sugar to candy. It is the sine qua non of most fiction from Cervantes to the present. While the feature Franklin enjoyed can be found in the body of texts we think of as exemplifying realism, it does not define that mode of fiction, neither its particular formal nor its thematic qualities.